Tag Archive: curatorship

Appointment of a curator

A practical guide to selecting and appointing a Curator Bonis

Appointing a Curator Bonis. Cape Town Lawyer

The ability to make decisions can be impaired because of diminished mental capacity, resulting from a variety of things, requiring the appointment of a curator. Sometimes the impairment is permanent, such as intellectual disability, brain injury or disease, dementia (Alzheimer’s) or incapacity related to ageing. In other cases the damage can be temporary, such as from serious illness, a stroke where the person recovers function, or mental illness. Mental disability and ageing are the most frequent causes of an inability to make effective decisions. Impairment can come on suddenly, for example following an accident or stroke (in the immediate aftermath), or it can be gradual and often dismissed, as in the case of encroaching dementia. Sometimes it takes a significant event for family members to fully accept that their loved one is slowly losing their grip on reality.

The general rule is that majors (those age 18 and above) are presumed mentally and legally competent to manage their own affairs until it is proved to the contrary. But if you have elderly parents, or if you suffer from a degenerative illness that may affect your decision making in future, you may want to think about how you will administer your parents’ affairs…or who will administer yours…should it become necessary.

Appointing a Curator Bonis

There are two ways in which you can appoint someone, called a Curator Bonis, to administer the estate of an individual who is incapable of managing their affairs. We’ll look at each procedure in turn.

1. Common law procedure – application to the High Court

The High Court may declare a person incapable of managing their own affairs, and may appoint a Curator to manage their affairs and/or property. The procedure for this is set out in Rule 57 of the Uniform Rules of the High Court.

Anyone who wants to apply to the court for such an order must first apply for the appointment of a Curator Ad Litem. This application is by way of notice of motion and must contain:

  • Full particulars of the locus standi (the right to make the application) of the applicant
  • Jurisdiction of the court
  • The age and sex of the person considered incapable, full particulars of their means, and information as to their general state of physical health
  • The relationship between this person and the applicant, and the duration and intimacy of their association (if any)
  • The facts and circumstances provided as evidence that the person is of unsound mind and incapable of managing their affairs
  • The name, occupation and address of the respective persons suggested for appointment by the court as Curator Ad Litem, and subsequently as Curator Bonis of the person’s affairs or property, and a statement that these people have been approached and have indicated that, if appointed, they would be able and willing to act in these respective capacities

The application should be supported by:

  • An affidavit by someone who knows the person well, containing facts and information about the person’s medical condition. The affidavit must also set out the relationship between the deponent (the referee) and the person, and the deponent’s interest in the matter
  • Two recent medical reports by medical practitioners, one of whom should (where practicable) be a psychiatrist, who have conducted recent examinations of the person to determine their medical condition. The reports must contain the facts about the condition and opinions about the nature, extent and likely duration of any mental disorder or defect observed. They must comment on the person’s inability to manage their affairs. The medical practitioners should not be related to the person or have any interest in the matter

The court will then appoint a Curator Ad Litem (usually an advocate of that court) to investigate the matter fully and report to the court and the Master [Rule 57(4) & (5)]. The Curator Ad Litem will interview the person and make any further enquiries necessary. They will then prepare and file a report with the Registrar of the court.

The Master also compiles a report after receiving the Curator Ad Litem’s report, making recommendations to the court regarding the merits of the application, the suitability of the nominated curator, their powers and security [Rule 57(7)]. Upon consideration of the application, the reports from the Curator Ad Litem and the Master, and any other relevant information, the court will issue the order if necessary [Rule 57(10)].

When the High Court appoints a curator to administer someone’s estate, they may not act on that appointment until formally authorised by the Master of the High Court. Section 71 of the Administration of Estates Act 66 of 1965 provides that no one who has been nominated, appointed or assumed as curator may administer any property belonging to the person under care until authorisation is received via letters of curatorship.

2. The procedure for the appointment of an administrator as set out in the Mental Health Care Act, 17 of 2002

In terms of the Mental Health Care Act, the Master of the High Court may, after considering and processing the required application, appoint an administrator to manage the property of a person who has been diagnosed as mentally ill or a person with severe or profound intellectual disability.

While the common law application is appropriate for any situation where the person is incapable of managing their own affairs, this application is only relevant in the case of mental illness or severe or profound disability. The diagnosis will have to be confirmed by medical certificates or reports by a mental health care practitioner duly authorised to make such a diagnosis.

Because no High Court application is required for the appointment of an administrator, the procedure is far less costly than the common law appointment of a Curator Bonis. The application can be lodged directly with the Master of the High Court in the relevant jurisdiction (where the person needing the administrator resides). The applicant does not need to use an attorney, although a good family lawyer’s assistance in lodging the application with the Master can make the task much easier.

The application procedure for the appointment of a curator in terms of the Mental Health Care Act is set out in section 60 of the Act and provides as follows:

  • Any person over the age of 18 may apply to a Master of a High Court for the appointment of an administrator for a mentally ill person or person with severe or profound intellectual disability.
  • The application must be made in writing, under oath or solemn affirmation and must:
    1. Set out the relationship of the applicant to that person
    2. State the reason why the spouse or next of kin did not make the application, if the applicant is not a spouse or next of kin of that person
    3. Describe the steps taken to establish the whereabouts of the next of kin before making the application, if they are not available to make the application
    4. Include all available mental health-related medical certificates or reports relevant to the mental health status of that person and to their incapacity to manage their property
    5. Set out the grounds on which the applicant believes the person is incapable of managing their property
    6. State that, within seven days immediately before submitting the application, the applicant had seen the person
    7. State the particulars of the person and their estimated property value and annual income
    8. Give the particulars and contact details of anyone who may provide further information relating to the mental status of the person
  • The applicant must attach proof that a copy of the application has been submitted to the mentally ill person.

Powers of a curator

The powers and responsibilities of a curator or administrator are primarily to administer the estate of the person who is incapable of managing their own affairs, including the following:

  • To receive, take care of, control and administer all the assets
  • To carry on/or discontinue, subject to any law which may be applicable, any trade, business or undertaking
  • To acquire, whether by purchase or otherwise, any property, movable or immovable, for the benefit of the estate
  • To apply any money for the maintenance, support or towards the benefit of the person; to invest or re-invest any funds etc.

These powers are usually subject to the prior consent and approval of the Master.

Contact a specialist family lawyer

While an attorney may not be explicitly required under the second procedure above, in both cases a family lawyer experienced in estate planning and management will make a complex and difficult situation easier to understand and manage. There are multiple steps in the process of appointing a curator, and it is important to ensure nothing is left out. There may be other considerations, too, such as a will and life insurance provisions. Don’t put the financial wellbeing of your loved one at risk. Contact family lawyer Cape Town for a consultation. Speak to Simon on 086 099 5146 or simon@sdlaw.co.za today for more information or to make an appointment.

 

Use our handy checklist to make sure you have everything you need.

Read our blog post on the different types of curatorships and administrators.

 

 

 

 

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Curator Bonis – who cares?

When you might need…or need to become…a Curator Bonis

Cargin for loved ones when they can no longer are for themselves. Curatorships

When is a curator bonis necessary? Consider this scenario: your mother is getting on in years. She is becoming a bit frail and finds the day-to-day tasks of dealing with banking, bill paying, and other administrative matters a strain. She grants you Power of Attorney to assist her with her affairs. You can now pay her bills for her and represent her at the bank and other official outlets. Then her mental health deteriorates to the point where she is no longer lucid. “No problem,” you think. “I have Power of Attorney. I can continue to manage her business dealings for her. Glad we sorted that out.”

The limits of Power of Attorney

You could be forgiven for thinking this, but you would be wrong. In some countries, including the UK, Canada, Australia and New Zealand (notably all countries with strong links to South Africa, hence the common misunderstanding), Power of Attorney can remain in force in the event of mental incapacity. There are varying names for this: Lasting Power of Attorney, Continuing Power of Attorney or Enduring Power of Attorney. However, here in South Africa the Power of Attorney is valid only so long as the grantor of the power is in full possession of their mental faculties.

The legal reason for this is that the agent (the person to whom Power of Attorney is granted) cannot have more power than the principal (the person granting the power, i.e. your mother in our example). If your mother is incapacitated and you make decisions on her behalf, without consultation, you hold the balance of power, however benign your intentions. If you continue to exercise the Power of Attorney, which is deemed to have lapsed when the principal loses mental capacity, you are committing fraud and you could even be sued, for example by another member of the family.

The legal alternative

South African law, derived from Roman-Dutch law, makes provision for these circumstances in the form of curatorships. There are three types of curatorship that apply to caring for someone no longer able to make decisions. The process of appointing a curator is lengthy and costly, but justifiably so. Legal rigour is vital to ensure the rights of the incapacitated person are upheld and they are not taken advantage of by an unscrupulous relative or friend. A recent case before the High Court of the Western Cape involved (among other things) the marriage of a woman to a man in a frail care unit who was deemed mentally unable to understand the implications of a marriage contract. Such abuse of affection does happen, but the law attempts to mitigate the consequences as much as possible.

Curator Bonis

Rule 57 of the Uniform Rules of Court allows the court to appoint a Curator Bonis to look after the financial affairs and assets of the incapacitated person. The Curator Bonis, according to the Department of Justice and Constitutional Development, has the power:

  • To receive, take care of, control and administer all the assets
  • To carry on/or discontinue, subject to any law which may be applicable, any trade, business or undertaking
  • To acquire, whether by purchase or otherwise, any property, movable or immovable, for the benefit of the estate
  • To apply any money for the maintenance, support or towards the benefit of the person; to invest or re-invest any funds etc.

Often the Curator Bonis appointed will be a lawyer, rather than a family member, because the duties are onerous and may be too much for someone who is also providing personal care to their loved one and in all likelihood holding down a job and looking after their own family at the same time.

The Curator Bonis is accountable to the Master of the High Court and is required to submit annual accounts, detailing all expenditure and providing all receipts on behalf of their charge. The system guarantees transparency but is a lot of work. A Curator Bonis is paid, but the statutory provision is modest. They may receive:

  • An annual fee of 6% on gross revenue accrued from assets (such as dividends, pension, interest and rental income). If the assets are non-income earning, e.g. residential property or gold, jewellery, etc., the Curator Bonis must apply to the court for a special fee
  • A one-off fee of 2% of capital on the date the curatorship ends (when the person dies or is released from curatorship)

Curator Ad Personam

A Curator Bonis is responsible for the property of the person they represent. As such, they can make decisions about assets and financial matters, as detailed above. If there are personal welfare or health issues to decide, such as whether or not the individual should undergo surgery, or move into a frail care facility, a Curator Ad Personam must be appointed. The process for this is less formal than for a Curator Bonis, and may be terminated should the ill person recover (though in the case of dementia this is unlikely). The Curator Ad Personam is often a family member, as they are more likely to have intimate knowledge of the person’s wishes, such as whether or not extraordinary measures should be taken.

The process – Curator Ad Litem

There is a third type of curator – the Curator Ad Litem. This is a legal role and the person performing this function may never meet the individual requiring curatorship. Let’s say you believe your mother can no longer make decisions for herself, and you feel she needs a Curator Bonis, and possibly a Curator Ad Personam. How do you make this happen? As we’ve suggested, the process is exhaustive. Firstly, you apply to the court for an order declaring your mother to be of unsound mind and incapable of managing her affairs. In order to bring this application, you must secure supporting affidavits from two medical practitioners, one of whom must be an “alienist”, in other words a registered psychiatrist or neurologist.

The court will then appoint a Curator Ad Litem. This is usually an Advocate, appointed by the applicant (you) or your attorney. The Curator Ad Litem’s job is to represent your mother and investigate the facts. They will report their findings to the Court and the Master of the High Court.

Only after that will the Curator Bonis and/or Curator Ad Personam be appointed, on the recommendations of the Curator Ad Litem. The appointment can only be made by the Master of the High Court, who will also write a report, either accepting or rejecting the outcome of the Curator Ad Litem’s report. The total cost of the process is c.R20 000 – R40 000.

The alternative – an administrator

Where the incapacitated person has very modest assets, the cost of appointing and then supporting a Curator Bonis may not be economically viable. If your mother’s assets are R200 000 or less, and/or her annual income is R24 000 or less, you may apply to the Master of the High Court to appoint an administrator in terms of the Mental Health Care Act. The cost of varies but is c. R2 500.

However, administration is only permitted, in terms of the Mental Health Care Act, for “a mentally ill person or a person with severe or profound intellectual disability”. This excludes anyone unable to manage their affairs due to physical handicap, serious illness or old age, unless they are suffering from dementia. If their decision-making ability is impaired but is not defined as mental illness or intellectual disability in terms of the Mental Health Care Act, the Court will not sanction administration.

Protect your loved ones!

We all want to think that our family members are safe and free from risk of harm or abuse, whether emotional or physical. Sadly, we only have to listen to the news to know that older people are often neglected or exploited. The modern nuclear family means that we are not always around to check in on elderly parents every day. And it can happen that a fortune-seeker steps into the breach and then proceeds to take advantage of diminished faculties, coercing the frail person into changing a will or even marrying them, as in the case mentioned above.

If your family member is not mentally stable and you fear they are being financially or physically abused, you need legal representation. Cape Town lawyers SDLAW can help you secure the appropriate curatorship for your loved one and protect them from exploitation. We can also make sure their will is in order and the estate is protected.

Contact us for more information

Cape Town attorneys SDLAW can guide and support you through the process of appointing a Curator Bonis or Curator Ad Personam. We know this is a difficult time for a family and will handle your case with sensitivity and the utmost discretion. If you would like to discuss your situation in confidence, on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Further resources:

Curator Bonis – who cares?

 

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